Limited Government and Free Market Views in Delaware

Archive for November, 2009

(Editor’s note: this article can also be viewed on CRI’s Issues page.)

The high-profile Chicago case should be viewed through the prism of the original intent of the Constitution. The nearly 1,000 state lawmakers, 38 Attorneys General, numerous academics and overwhelming, bipartisan majority of members of the U.S. House of Representatives and the U.S. Senate who have signed amicus curiae briefs supporting the case are upholding the idea that the United States Constitution applies to all levels of government and every individual, as intended by the Founders.

By David T. Hardy, Esq.

Foundations of the Union

In 1775 the American Revolution began, a struggle fueled by belief that the British government was depriving the colonists of their rights as Englishmen – the right to vote on taxation, to be tried by jury and to be protected against random search and seizure. The conflict ignited when the British tried to seize militia arsenals in Massachusetts and in Virginia – to the Americans, this made it clear they were to be made powerless and enslaved.

The new States fought almost all the Revolution with a Continental Congress but no formal agreement. The first such agreement, the Articles of Confederation, was not ratified until 1781. The Articles provided for a weak central government. Each State got one vote in Congress, and any major decision took a 2/3 majority. Budgets were met by asking money or supplies from the States, which often refused, leaving American armies unpaid and unfed for extended periods.

A Proposed Constitution

The Articles had no enforcement provisions, and so States did as they willed – refusing to contribute funds, or violating treaties, or taxing imports. Congress eventually agreed to summon a convention to propose strengthening amendments to the Articles.

This 1787 convention instead drafted an entirely new constitution, enormously increasing Federal powers to tax and spend, to regulate interstate and foreign commerce, to negotiate treaties and to establish an army and navy. It had federal courts and an executive branch to enforce decisions. State conventions were asked to ratify the agreement; once nine agreed, it would bind them, and others if they later ratified.

George Mason of Virginia proposed to add a bill of rights to the new charter, but the convention, in its greatest mistake, rejected the idea. Mason and others refused to sign the constitution and returned home to oppose its ratification. (Those supporting ratification are today called federalists, and those opposing it, antifederalists).

Antifederalists argued that Americans had just thrown off a distant, powerful central government – King George and his Parliament – which had ignored their rights. This new, untried, national government might go down the same path, especially since it had no bill of rights. Why had the convention spent so much effort giving power to government, without putting limits on it, or protecting their natural rights? When the Constitution got its required 9th vote, from New Hampshire, it came with a compromise: the State ratified but demanded that a national bill of rights be added on.

The Constitution now bound the States that had signed on, but several (including powerful Virginia and New York) still had not ratified. Both States followed the New Hampshire pattern, ratifying while providing a list of amendments that they demanded Congress adopt.

The Bill of Rights

In the ratifying debates, and in his contributions to the Federalist Papers, James Madison had argued that no bill of rights was necessary, since Congress would only have what powers were delegated, and nothing in the Constitution said it could suppress free speech, establish a church, etc. (Madison probably knew this was a weak argument; the spending power could create a church, powers over interstate commerce could suppress newspapers). He also argued that bills of rights were just “parchment barriers” which legislatures would violate at will.

As a Representative in the First Congress, however, Madison became the champion of a bill of rights. Madison had probably pledged to work for a bill of rights in the Virginia ratifying convention; he had clearly promised to do so during his election campaign, and he was an honorable man. He and Jefferson had also debated the question in correspondence, and Jefferson had argued that even a “parchment barrier” is useful; if the people are to resist invasions of their rights, by voting or by more direct means, they should start with a written agreement as to what those rights were.

The First Congress, though, resisted. It was busy creating a new government – taxes, a treasury, courts, an army and navy, a post office, and a bill of rights seemed a low priority. At one point, Madison protested that they could have drafted a bill of rights in less time than they had spent debating whether to draft one! Eventually, Madison won out and the First Congress did vote out a Bill of Rights, in the form of 12 amendments, 10 of which were ratified by the States and became known as the Bill of Rights. Antifederalists had predicted the new government would violate Americans’ rights; Madison had it prove its good faith by swearing off any power to infringe freedom of speech, press, or religion, or to establish a church, to infringe the right to arms, or make unreasonable searches, and so on.

Applying the National Bill of Rights to the States

In 1833, the U.S. Supreme Court ruled that the Federal Bill of Rights only restricted Federal action, not action by States (some State courts later disagreed, reasoning that a right is a right).

After the Civil War, Congress proposed, and the States ratified, the 14th Amendment. This forbade States to abridge the “privileges or immunities of citizens of the United States,” or to deprive anyone of “due process of law.” (In the 1860s and before, “privileges” were commonly used to describe “rights.”).

There is strong evidence that “privileges or immunities of citizens of the United States” was meant to describe (at the bare minimum) the Federal Bill of Rights. But the Supreme Court was hostile to this, and in 1870s decisions played a complicated word game that made “privileges or immunities” almost meaningless.

In the 20th century, though, the Supreme Court thought better of applying the Federal Bill of Rights to the States. Rather than admitting it was wrong in the 1870s, it instead used the 14th Amendment’s “due process clause” for this, ruling that infringing this or that right deprived Americans of due process of law. Because the Court could pick and choose rights for this, this was called “selective incorporation.” As of this writing, all Bill of Rights liberties have been applied to the States except for the right to arms (whose application to the States is now before the Supreme Court), the right to jury trial in civil suits, and the requirement that felony prosecutions be approved by a grand jury rather than a judge.

David T. Hardy is an attorney and member of the U.S. Supreme Court bar. He has published 19 articles in law reviews, most devoted to constitutional law; his first such article in 1974, was the first of the modern law review articles to document the Second Amendment as an individual right. He submitted friend of the court briefs for Academics for the Second Amendment in both D.C. v. Heller and McDonald v. Chicago. He recently produced the documentary film “In Search of the Second Amendment” (www.secondamendmentdocumentary.com) which was nominated for the ABA’s Silver Gavel award.

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

Nearly 1,000 lawmakers from all 50 states – including 21 Delawareans – have signed a “friend of the court” brief supporting the National Rifle Association’s position that an individual’s rights to keep and bear arms, guaranteed in the Second Amendment, should be incorporated against the states through the Fourteenth Amendment.

“It’s vitally important that elected officials protect the Constitution, and you can’t pick and choose the parts of the Constitution you like or don’t like,” Sen. Colin Bonini, R-Dover South, said of his decision to sign the NRA’s brief.

“Regardless of how people feel about firearms, the Constitution clearly protects an individual’s right to own firearms,” Bonini said. “As legislators, we took an oath to defend the Constitution.”

The NRA’s brief was filed Monday with the Supreme Court in the case of McDonald v. City of Chicago.

“We are pleased that such a large group of state legislators and other officials agree that our Second Amendment freedoms should apply to all Americans, not only those who reside in federal enclaves,” NRA Chief Lobbyist Chris W. Cox said in a written statement. “Gun owners across the country should be proud of the stand that their lawmakers are taking on this crucial effort to restore and protect the gun rights of law-abiding Americans everywhere.”

In 2008, the Supreme Court struck down Washington D.C.’s near total handgun ban in the landmark case District of Columbia v. Heller. The justices found that the right to bear arms granted in the Second Amendment is an individual right.

However, since the District is a federal enclave, the court still had to consider whether the Second Amendment protections applied outside of D.C.

Now in McDonald, the court will determine whether the Second Amendment protections are incorporated against the states and local governments through the Fourteenth Amendment.

The case was spawned by Chicago’s restrictive gun laws, including a near-total handgun ban, which have been in effect for 27 years.

The court’s decision could force many jurisdictions to change or remove their firearms laws and restrictions.

Dover attorney John Sigler, a CRI board member and immediate past-president of the NRA, said in Heller, the Supreme Court found that the Second Amendment protections that provide an individual the right to keep and bear arms predate the formation of our country.

“It was merely codified by the founders in the Second Amendment so that future generations would not forget this fact,” Sigler said. “In addition, the Supreme Court in Heller recognized the fundamental right of all human beings to self defense.”

Because the District of Columbia is a federal enclave, Sigler pointed out, the impact of the case was limited.

“The McDonald case presents to the court the question of whether the right to keep and bear arms contained in the Second Amendment is like the right to free speech, the right to a free press, the right to a jury trial, prohibitions against unlawful search and seizure, that are all applicable to the states, in protecting the fundamental rights so well understood by the founding fathers,” Sigler said.

The impact of the decision in Delaware may not be as great as in other states and jurisdictions, because of safeguards incorporated into the state constitution.

“Having said that, it is entirely possible that Chicago, New York, San Francisco and many of the states of the union – particularly New Jersey – could find many of their gun laws to be unconstitutional because they infringe upon the rights of law abiding citizens to keep and bear arms for lawful purposes,” Sigler said.

The amicus curiae brief signed by the state lawmakers was accompanied by a similar brief submitted by 251 members of the U.S. Congress and 58 U.S. Senators.

In addition, 38 attorneys general have signed a brief supporting the NRA’s position.

Neither Attorney General Beau Biden nor any member of Delaware’s congressional delegation signed these briefs.

Biden did not immediately return calls seeking comment for this story.

Sen. Joseph Booth, R-Bridgeville, first learned of the McDonald case from the NRA.

“I support the NRA. They don’t take elected officials down the wrong road,” Booth said. “There’s an old adage where they talk about SUVs killing people. It’s actually people in operation of a motor vehicle, or in operation of a gun, where we have concerns.”

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

None of the Delaware delegation chose to support the rights of their constituents as guaranteed in the Second Amendment to the United States Constitution.

Congressman Mike Castle (R ) joined with Senators Tom Carper (D) and Ted Kaufman (D) and a minority members of both Houses in an apparent attempt to limit the scope of the Second Amendment to federal enclaves while a majority of both the House and the Senate chose to stand with their constituents to ensure that the United States Supreme Court understands that the right of peaceful, law-abiding citizens to keep and bear arms for self defense and other lawful purposes was viewed by our Founding Fathers as a fundamental right that shall not be infringed by any level of government, state or federal.

From the National Rifle Association:

Fairfax, Va. — An overwhelming, bipartisan majority of members of the U.S. House of Representatives and the U.S. Senate have signed an amicus curiae, or “friend of the court,” brief supporting the NRA’s position that the Second Amendment is incorporated against the states through the Fourteenth Amendment. The amicus brief, bearing the signatures of 251 Members of Congress and 58 Senators, was filed with the U.S. Supreme Court today in the case of McDonald v. City of Chicago.

Last week, the NRA filed its brief with the Supreme Court as Respondent in Support of Petitioner in the McDonald case. The NRA brief asks the Court to hold that the Second Amendment applies to state and local governments through the Fourteenth Amendment.

“The framers of the Bill of Rights and of the Fourteenth Amendment never intended for the Second Amendment to apply only to some Americans in certain places. Gun owners across the country are grateful for the support that so many members of Congress are lending to this crucial effort to ensure that the Second Amendment applies to states, not just federal enclaves,” said Chris W. Cox, NRA chief lobbyist. “I would especially like to acknowledge the outstanding efforts of former United States Solicitor General Paul Clement in authoring this historic amicus brief, as well as U.S. Senators Kay Bailey Hutchison (R-TX) and Jon Tester (D-MT), and Congressmen Mike Ross (D-AR) and Mark Souder (R-IN) for their work on this important effort. This brief boasts the most signers of a congressional amicus brief in the history of the Supreme Court — breaking the record set just last year in the Heller case.”

In September, the Court agreed to consider the McDonald case, on appeal from the U.S. Court of Appeals for the Seventh Circuit. That court incorrectly claimed that prior Supreme Court precedent prevented it from holding in favor of incorporation of the Second Amendment. The NRA believes the Seventh Circuit should have followed the lead of the Ninth Circuit Court of Appeals’ decision in Nordyke v. King, which found that Supreme Court precedent does not prevent the Second Amendment from applying to the states through the Fourteenth Amendment’s Due Process Clause. As a party in McDonald, the NRA is actively involved in this case and believes the NRA brief makes a clear and strong case in favor of incorporation of the Second Amendment.

Cox concluded, “It is our sincere hope that the Supreme Court will follow the Constitution’s true meaning and hold that the Second Amendment applies to all law-abiding Americans.”

Chicago has had a handgun ban and other restrictive gun laws in place for 27 years. The Supreme Court is expected to hear theMcDonald case in February 2010.

An entire tier – 42 inmates – at the Sussex Correctional Institution in Georgetown has come forward telling state officials they witnessed an unprovoked assault by three guards on one inmate – an attack which they say was started by the guards.

They documented the assault on a Department of Correction (DOC) grievance form, which bears their 42 signatures. It was sent to Attorney General Beau Biden, Correction Commissioner Carl Danberg, the American Civil Liberties Union of Delaware, the NAACP and Dover attorney Steve Hampton.

In their complaint, the inmates state they want criminal charges brought against two guards and a sergeant “who assaulted inmate Usef Dickerson on 11/11/09, in front of about 43 inmates on A-Tier.”

“We the inmates fear these two officers, and request that they be moved out of the building, that they do not retaliate against the inmates for writing this petition and the grievance that they have filed concerning this incident,” the grievance states.

According to the grievance form filed three days after the assault, which describes the type of incident as “ongoing,” the attack on Dickerson occurred around 1:30 p.m., when the three guards, “after an exchange of words grab (sic) inmate Usef Dickerson around the neck, forced him to the chow hall.”

There, the grievance states the guards, “violently punched and kicked inmate Dickerson to the body and about the head and face.”

The inmates report that guards on A-Tier frequently “invite” the inmates to “come off the tier for a physical confrontation.”

“These three officers constantly harass us and threaten us with bodily harm,” the report states. “Also, they talk about our dead family members, kids and say stuff like ‘tell your mother to s— my d—. Now, what are you going to do?’”

Neither Danberg nor Biden were willing to be interviewed for this story, or say whether they would protect the inmates from retaliation for coming forward.

In an e-mail, Biden’s spokesman Jason Miller said, “An assault on an inmate is a serious allegation. The Department of Correction maintains a process for reviewing such allegations and investigating if warranted. The Department of Correction has informed us that they have initiated this process.”

SCI Deputy Warden G.R. Johnson was similarly certain the assault was being investigated. However, Johnson admitted he hadn’t seen the inmates’ grievance or any document ordering an inquiry.

Dover attorney Steve Hampton has seen the results of numerous investigations by the DOC’s internal affairs unit. Few have resulted in discipline or charges.

“The IA investigators do the best with what they’re able to do, but they’re not arms-length from the warden and they’re under the control and oversight of the Attorney General’s office, who also represents the subjects of the investigations – the correctional officers and the wardens,” Hampton said. “It puts the IA investigators in a difficult spot. It’s difficult for them to do a truly independent investigation.”

Hampton pointed out that even if an IA investigation finds malfeasance or criminality, the investigators have no authority to prosecute the cases.

The bigger problem, Hampton said, is the “Culture of Silence” at SCI, also known as the “Blue Wall.” Guards at SCI, he said, will not report the misdeeds of their peers.

“Until they change the culture of silence, they’re not going to have any substantive changes down there,” he said. “The correctional officers don’t fear that anyone is going to do anything. They feel as if they have immunity to do whatever they want.”

Abusive history

SCI has a reputation for abuse, especially if the inmate is small, non-threatening and mentally or physically ill.

In June, guards at the facility nearly beat Laurel businessman David Sully to death, by raining down blows to his head and face. Several wounds on Sully’s face required stitches to close. When he left the facility, he was covered with dye used in the guards’ pepper spray.

Despite horrific photos that chronicled the assault, Danberg said his guards did nothing wrong. He implied Sully had done something to merit the repeated beatings. Sully is 5-feet, 5-inches tall and weighs 140 pounds.

Last month, Gianfranco Carta said guards at SCI shot pepper spray directly into his mouth, and then smacked his head into a concrete wall several times as he walked blindly down a hallway. Carta stands 5-feet, 7-inches and weighs 140 pounds.

Danberg’s internal affairs unit has said Carta’s story is “under investigation.”

In 2006, several guards attacked inmate David Kalm. Sometime during the assault, one of the guards shoved a nightstick or similar object down Kalm’s throat, tearing his trachea. Kalm is 5-feet, 7-inches and suffers from asthma, COPD and severe anxiety.

Danberg’s internal affairs unit investigated and found the guards did nothing wrong. Kalm has since sued the DOC. His case is pending. The guards – defendants in the civil suit – are represented by the Attorney General’s office, after the office concluded they did nothing to merit criminal charges.

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

While most of the media was debating whether the recent Newsweek cover photo of Sarah Palin was sexist or sexy, the National Rifle Association quietly filed a brief in support of a U.S. Supreme Court case that could resolve a substantive debate — whether an individual’s right to firearms ownership guaranteed in the Second Amendment is applied to the states and local governments through the Fourteenth Amendment.

In 2008, the Supreme Court struck down Washington D.C.’s near total handgun ban, in the landmark case District of Columbia v. Heller. The justices found that the Second Amendment granted individuals the right to bear arms.

However, since the District is a federal enclave, the court still had to consider whether the Second Amendment protections applied outside of D.C.

Now, in McDonald v. City of Chicago, the Court will determine whether the Second Amendment applies to the states and local governments.

According to the NRA:

In September, the Supreme Court agreed to consider the McDonald case, on appeal from the U.S. Court of Appeals for the Seventh Circuit. That court incorrectly claimed that prior Supreme Court precedent prevented it from holding in favor of incorporation of the Second Amendment. As we argued at the time, the Seventh Circuit should have followed the lead of the Ninth Circuit Court of Appeals decision in Nordyke v. King, which found that Supreme Court precedent does not prevent the Second Amendment from applying to the states through the Fourteenth Amendment’s Due Process Clause.

For most of the East Coast and the People’s Democratic Republic of California, guns are a partisan political issue, subject to “control” by the tyrannical and whimsical acts of local politicians, many of whom couldn’t describe the difference between a shotgun and a rifle.

For most of the states in between, guns are simply a tool.

In Delaware, one need not look hard to see evidence of the politicization of this civil right.

Gov. Jack Markell, during his campaign, touted the benefits of several gun control strategies, including the need for banning “assault weapons” — a political term he had a hard time defining. We at CRI are pretty sure Markell defines an “assault weapon” as any firearm that looks scary. We prefer the term PIG (Politically Incorrect Gun).

A CRI staffer and his favorite PIG (Politically Incorrect Gun)

Outside the First State, the mishmash of firearms restrictions becomes even more looney.

Most PIGS are banned on the other side of the Delaware Memorial Bridge. New Jersey has some of the most restrictive and most ill-conceived firearms laws in the United States.

The Garden State is home to Sarco Inc., one of the country’s largest and most-respected purveyors of firearms and firearms parts and accessories. Sarco can sell a PIG or a 30-round magazine to a visiting Delawarean — and their prices and inventory make the trip worthwhile — but not to anyone from New Jersey, even if they live across the street from the Stirling, NJ firm.

Jumping across the country, California Gov. Arnold Schwarzenegger recently signed A.B. 962, which requires gun owners to provide their fingerprints and personal information when they buy a box of ammunition.

Through McDonald, the High Court can end the craziness, making moot many of the inane laws and restrictions signed into law for purely political reasons, by politicians who don’t know which end of the barrel the bullets come out of.

According to the wife of the inmate suffering from the hole in his buttocks, which according to his medical records contains MRSA, Staph and other bacteria, the wound has now burrowed to a depth of six-inches, and the opening is as big as a silver dollar.

The Department of Correction, she said, will not discuss health care options with her or her husband.